Article written by Kim Brown
In a previous article, we wrote about the difficulties same-sex non-residents experienced when trying to obtain a divorce both in Canada, and in their home country.
Many same-sex couples who lived in countries with no recognition of same-sex marriage travelled to Canadian to get married, but found themselves in a sort of legal limbo if they wanted to get divorced. The could not dissolve the marriage in their own country because it was not legally recognized there, and they could not do in in Canada either because they were not “ordinarily residents” as required under Canada’s Divorce Act.
However, Bill C-32 (the Civil Marriage of Non-residents Act) was introduced by the federal government in 2012 in order to address the issue of Canadian marriages, and divorces, between non-residents, whether opposite-sex or same-sex.
If enacted, Bill C-32 would change the law so that all marriages performed in Canada, including those between non-residents, are valid for the purposes of Canadian law as long as the parties were domiciled here.
But there was very little talk about Bill C-32 after it its initial introduction. More than a year had passed and it still remained in the first-reading stage. And then, in June of 2013, the bill allowing same-sex couples married in Canada to get a divorce glided through Parliament.
The bill stated that “all marriages performed in Canada between non-residents, whether they are of the same sex or of the opposite sex, that would be valid in Canada if the spouses were domiciled in Canada are valid for the purposes of Canadian law even if one or both of the non-residents do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile. It also establishes a new divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where a divorce cannot be granted to them because that state does not recognize the validity of their marriage.”
Today, couples who came to Canada to get married will also be granted a Canadian divorce provided
(a) there has been a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year before the making of the application;
(b) neither spouse resides in Canada at the time the application is made; and
(c) each of the spouses is residing — and for at least one year immediately before the application is made, has resided — in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.
A divorce granted under the Act will take legal effect throughout Canada, and legally dissolve the marriage of the spouses.
Are you contemplating getting a divorce in Canada? Shulman Law Firm is a Toronto-area firm of experienced family lawyers who can provide practical advice and effective representation relating to the steps and processes involved in a same-sex divorce. Contact us to arrange a consultation.